UTAH ATTORNEY GENERAL - United States … ATTORNEY GENERAL Spencer E. Austin, Utah Bar # 150 Chief...

la- 13693321

Sean D. Reyes, Utah Bar # 7969 UTAH ATTORNEY GENERAL Spencer E. Austin, Utah Bar # 150 Chief Criminal Deputy Attorney General Craig L. Barlow, Utah Bar # 213 Assistant Attorney General Utah Attorney General’s Office 350 North State Street, Suite 230 Salt Lake City, Utah 84114-2320 Telephone: (801) 366-0310 Facsimile: (801) 366-0315 [email protected] Peter Hsiao (pro hac vice) Matthew L. Hofer (pro hac vice) MORRISON & FOERSTER LLP 707 Wilshire Boulevard, Suite 6000 Los Angeles, California 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 [email protected] Attorneys for Plaintiff THE STATE OF UTAH

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

THE STATE OF UTAH,

Plaintiff,

v.

ENVIRONMENTAL RESTORATION, LLC; HARRISON WESTERN CORPORATION; KINROSS GOLD CORPORATION; KINROSS GOLD U.S.A., INC.; SUNNYSIDE GOLD CORPORATION; GOLD KING MINES CORPORATION; UNITED STATES OF AMERICA; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; SCOTT PRUITT, in his official capacity as Administrator, United States Environmental Protection Agency; and WESTON SOLUTIONS, INC.,

Defendants.

Case No. 2:17-cv-00866-TS

FIRST AMENDED COMPLAINT

JURY DEMANDED

Judge: The Honorable Ted Stewart

Case 2:17-cv-00866-TS Document 93 Filed 01/04/18 of 25

2 la-1369332

COMPLAINT

INTRODUCTION AND STATEMENT OF THE CASE

1. On the morning of August 5, 2015, the U.S. Environmental Protection

Agency (“EPA”) and its contractors triggered an uncontrolled blowout at the Gold King

Mine located about five miles north of Silverton, Colorado (the “Blowout”). The disaster

dumped over three million gallons of acid wastes and toxic metals into Cement Creek and

the Animas River, turning the river into a vivid orange brown color. As the flow

continued downstream, those hazardous wastes were deposited along the Animas and San

Juan Rivers, until the plume reached Lake Powell in Utah on August 14, 2015.

2. EPA conceded it is responsible for the Blowout and its impacts, stating: “EPA

takes responsibility for the Gold King Mine release and is committed to continue working

hand-in-hand with the impacted local governments, states and tribes.”

https://www.epa.gov/goldkingmine (emphasis added).

3. EPA and its contractors acted wrongfully in causing the Blowout. The mine

owners and operators also acted wrongfully and are responsible for generating the toxic wastes

and creating the conditions leading to the Blowout.

JURISDICTION

4. Jurisdiction is proper in this Court under 28 U.S.C. §§ 1331 (civil action arising

under the laws of the United States), 1367 (supplemental jurisdiction), 2201 (declaratory relief),

and 2202 (injunctive relief).

5. Jurisdiction is also proper in this Court under 42 U.S.C. §§ 9613(b) and

9613(g)(2) for the Comprehensive Environmental Response, Compensation and Liability Act

(“CERCLA”), under 42 U.S.C. § 6972(a)(1)(B) for the Resource Conservation and Recovery Act

(“RCRA”), and under 33 U.S.C. § 1365(a) for the Clean Water Act (“CWA”).


3 la-1369332

VENUE

6. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and 1391(e)(1)(B), 42

U.S.C. § 9613(b) (CERCLA), 42 U.S.C. § 6972(a)(1)(B) (RCRA), and 33 U.S.C. § 1365(a)

(CWA).

PARTIES

7. The Attorney General for the State of Utah is authorized to bring this action for

the State of Utah. UTAH CODE ANN. §§ 19-1-204, 67-5-1(2).

8. Defendant EPA is an agency within the executive branch of the federal

government. Its principal office is at 1200 Pennsylvania Avenue, N.W., Washington,

D.C. 20460. Defendant Scott Pruitt is named in his official capacity as Administrator of

EPA.

9. Defendant United States of America includes all agencies of the federal

government, including EPA. On February 17, 2017, the State of Utah submitted a claim

to EPA under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. EPA has not made

a final determination of the claim within the six-month time period prescribed in 28

U.S.C. § 2675(a).

10. Defendant Environmental Restoration is a Missouri limited liability company

with its principal office at 1666 Fabrick Drive, St. Louis, Missouri 63026. Environmental

Restoration was EPA’s primary contractor at all relevant times for emergency and rapid response

services (“ERRS”) at the Gold King Mine.

11. Defendant Weston Solutions, Inc. is a Pennsylvania corporation with headquarters

at 1400 Weston Way, West Chester, Pennsylvania 19380. Weston Solutions was at all relevant

times the Superfund Technical Assessment and Response Team (“START”) contractor for EPA

at the Gold King and Red and Bonita Mines.

12. Defendant Harrison Western Corporation is a Colorado corporation with its


4 la-1369332

principal office located at 1208 Quail Street, Lakewood, Colorado 80215. Harrison Western was

at all relevant time a subcontractor for Environmental Restoration for mining services at the Gold

King Mine.

13. Defendant Kinross Gold Corporation (“Kinross”) is a Canadian corporation with

its principal office at 25 York Street, 17th Floor, Toronto, Ontario M5J 2V5, Canada. Upon

information and belief, Kinross currently owns the Sunnyside Mine and neighboring properties

near Silverton, Colorado, through its subsidiaries Kinross Gold U.S.A., Inc. and Sunnyside Gold.

14. Defendant Kinross Gold U.S.A., Inc. (“Kinross U.S.A.”) is a Nevada corporation

with a principal office registered with the Colorado Secretary of State at 5075 S. Syracuse Street,

8th Floor, Denver, Colorado 80237. Upon information and belief, Kinross U.S.A. is a subsidiary

of Defendant Kinross, and has transacted business in Colorado since 2003. Kinross U.S.A.

directly owns Defendant Sunnyside Gold.

15. Defendant Sunnyside Gold Corporation is a Delaware corporation with a principal

office registered with the Colorado Secretary of State at 5075 S. Syracuse Street, 8th Floor,

Denver, Colorado 80237. Upon information and belief, it currently owns the Sunnyside Mine

and other properties near Silverton.

16. Defendant Gold King Mines Corporation (“Gold King Corp.”) is a Colorado

corporation with its principal office located at 729 Reese Street, Silverton, Colorado 81433. It

formerly owned the Gold King Mine, and was at relevant times responsible for managing

discharges from the Sunnyside Mine and other neighboring mines.

17. The Defendant corporations fit into two groups. The “Contractor Defendants”

were EPA’s contractors for the negligent work at the Gold King Mine site (Environmental

Restoration, Weston Solutions, and Harrison Western). The “Owner Defendants” were mine

owners who generated the toxic waste and negligently created the dangerous conditions at the

site (Kinross, Kinross U.S.A., Sunnyside Gold, and Gold King Corp.)


5 la-1369332

GENERAL FACTUAL ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION

Mining History and Early Reclamation Activity

18. The Gold King Mine is a former gold mine located in southwestern Colorado.

19. Beginning in 1959, the owner of the nearby Sunnyside Mine developed the

“American Tunnel” as a drainage and ore transportation passage for the Sunnyside Mine. The

American Tunnel was originally an exploratory tunnel into the Gold King vein system and

provided a pathway for contaminated water to move from the Sunnyside Mine to the Gold King

Mine.

20. In 1991, Defendant Sunnyside Gold owned the Sunnyside Mine and closed it,

operating a treatment facility for its contaminated wastewater. In 1996, Sunnyside Gold signed a

consent decree with the Colorado Department of Health and Environment purportedly allowing it

to cease treating contaminated wastewater if it would undertake reclamation of other acid

sources in the area.

21. Sunnyside Gold installed hydraulic bulkheads in the American Tunnel and other

locations. The bulkheads blocked the drainage from the American Tunnel and reduced the

discharge there, but caused acid drainage to flood the Sunnyside Mine.

22. An “adit” is a horizontal passage into a mine. After the Sunnyside Mine

bullheads were installed in 1996, the toxic wastewater backed-up and entered the Gold King

Mine causing it to discharge from the Gold King Mine Level 7 Adit.

23. In 2000, toxic wastewater from the Sunnyside Mine also began discharging from

the nearby Mogul Mine. In 2003, Sunnyside Gold installed bulkheads at the Mogul Mine.

Relationship Between Owner Defendants

24. In 2003, Defendant Kinross acquired Sunnyside Gold and its assets, including the

Sunnyside Mine. Upon information and belief, Kinross and Kinross U.S.A. controlled and

directed Sunnyside Gold’s activities at the Sunnyside Mine.


6 la-1369332

25. Upon information and belief, on May 1, 2003 Kinross provided a $1,250,000

irrevocable letter of credit to the Colorado Division of Minerals and Geology as surety for its

reclamation work at the American Tunnel, but later reduced and then eliminated the amount.

26. In 2002, Mr. Todd Hennis, the owner of the Mogul Mine, sued Sunnyside Gold

for its wastewater impacts to the Mogul Mine, but dropped the lawsuit after Sunnyside Gold

agreed to install bulkheads at the Mogul and neighboring Koehler Mine.

27. Upon information and belief, Sunnyside Gold transferred ownership of its water

treatment facility and discharge permit for the American Tunnel to Gold King Corp. in January

2003. Gold King Corp. and its owner Mr. Steve Fearn became the operators of the facility.

28. Upon information and belief, the Colorado Department of Public Health and

Environment Water Quality Control Division required Mr. Fearn to obtain a certification to

operate the water treatment facility by June 30, 2004. Upon further information and belief,

Sunnyside Gold’s manager of reclamation activities was to supervise Mr. Fearn until he acquired

the certification. Upon further information and belief, Mr. Fearn never obtained the certification,

and use of the facility was discontinued. In 2004, Gold King Corp. filed for bankruptcy, and Mr.

Hennis acquired the Gold King Mine.

Gold King Mine Reclamation Activities

29. The Gold King Mine operated under a mining permit in 1986. The permit

required that at the end of mining activities, the mining company close all four mine portals, and

a bond was held to ensure that would be done.

30. After Gold King Corp. discontinued operating the water treatment facility and

filed for bankruptcy, the Colorado Division of Reclamation, Mining and Safety (“DRMS”)

imposed forfeiture of the bond and used it to fund reclamation work at the Gold King Mine site.

31. In 2007, increased wastewater flow from the Gold King Mine Level 7 Adit caused

a slope failure and landslide at the adit’s waste-rock dump. The debris blocked the entrance to


7 la-1369332

the adit.

32. DRMS’s Project Summary expressed concern that water could build up behind

the collapsed material at that adit and eventually result in a blowout. There was also concern

about additional instability of the waste-rock dump.

33. In 2009, DRMS unsuccessfully attempted to penetrate the debris blocking the adit

with an observation pipe. DRMS’ efforts to close the adit did not provide adequate drainage and

had the potential to cause a blowout.

34. In 2014, DRMS requested EPA reopen and stabilize the adit. By that time, the

drainage system at the mine portal had not been maintained or monitored since its installation in

2009.

35. EPA began a removal site evaluation to investigate the possibility of opening the

collapsed mine portal in 2014, using the services of contractors under EPA Superfund Technical

Assessment and Response Team (“START”) and EPA Emergency and Rapid Response Service

(“ERRS”) contracts.

36. Defendant Environmental Restoration was the ERRS contractor at the Gold King

Mine and Defendant Weston Solutions was the START contractor. Environmental Restoration

subcontracted with Defendant Harrison Western for mining services at the Gold King Mine.

Harrison Western participated in planning for work to be performed at the Gold King Mine in

2015 and was scheduled to deploy to the mine later in August 2015. Each of the Contractor

Defendants had independent authority and control to perform their duties and take the necessary

actions to perform their work in a safe and proper manner, to avoid the Blowout and its damages.

37. In its ERRS contract task order, EPA identified the following risks at the

site:

Conditions may exist that could result in a blow-out of the blockages

and cause a release of large volumes of contaminated mine waters and


8 la-1369332

sediment from inside the mine, which contain concentrated heavy

metals.

EPA further specified that the work was to serve the following purpose:

[R]e-open the Gold King Mine portal and workings to investigate the

conditions to assess the on-going releases. This will require the

incremental de-watering and removal of such blockages to prevent

blowouts.

38. EPA’s task order also acknowledged the risk of an unstable increase in the water

level inside Gold King Mine when the agency required that its ERRS contractor incrementally

dewater and remove blockage so as to prevent blowouts.

39. When EPA and the Contractor Defendants began their excavation work in 2014,

they observed that seepage was emerging from the backfill at an elevation about six feet above

the adit floor. They presumed water had accumulated behind the blockage.

40. EPA and the Contractor Defendants incorrectly concluded there was six feet of

water impounded in the mine because seepage was not occurring higher up on the blockage.

41. EPA and the Contractor Defendants suspended their work until 2015 because they

uncovered conditions that required them to plan to treat a greater quantity of water potentially

accumulated behind the blockage.

The Blowout

42. On or about July 23, 2015, the EPA project leader and lead On Scene Coordinator

(“OSC”) Mr. Steven Way placed a phone call to Mr. Michael Gobla at the Bureau of

Reclamation (“BOR”). Mr. Way requested that Mr. Gobla conduct a site visit for the Gold King

Mine because Mr. Way was “unsure about the plans for the Gold King Mine” and wanted an

outside independent review of the EPA/DRMS plans by the BOR. Mr. Gobla agreed to conduct

a site visit and review on August 14, 2015.


9 la-1369332

43. Mr. Way, the lead OSC, was on vacation on August 4-5, 2015. He was replaced

at the Gold King site by the backup OSC, Mr. Hays Griswold, on those days.

44. On August 4, 2015, EPA, DRMS, Environmental Restoration, and Weston

Solutions (“EPA On Site Team”) created a plan to conduct excavation activities at the Level 7

Adit.

45. The EPA On Site Team observed contaminated water seeping out at an elevation

about five or six feet above the floor of the adit.

46. EPA and the Contractor Defendants assumed this meant that the contaminated

water level was below the top of the adit.

47. EPA and the Contractor Defendants also assumed because the mine was draining,

it was not under pressure from the contaminated water behind it.

48. Thus, EPA and the Contractor Defendants believed it was not necessary to

directly test for the level or volume of contaminated water behind the blockage. The EPA On

Site Team did not properly investigate or identify the danger at the site.

49. EPA and the Contractor Defendants did not insert a measuring device from a

location at a higher elevation from the blockage at the adit to determine the level of contaminated

water behind it.

50. EPA and the Contractor Defendants did not take a measurement to determine the

pressure of the contaminated water against the blockage at the adit.

51. EPA and the Contractor Defendants did not take precautions to design or install

containment measures, including but not limited to a secondary containment system, such as a

catch basin of proper size and capability, to prevent an accidental release of large quantities of

toxic wastewater from reaching the Animas River.

52. EPA and the Contractor Defendants also did not take the precaution of developing

and implementing emergency response procedures in the event of an accidental release of large


10 la-1369332

quantities of toxic wastewater, to prevent those toxic chemicals from reaching the Animas River.

EPA and the Contractor Defendants did not provide advance warning to other agencies or

municipalities of their work so that they could be prepared for an accident.

53. EPA and the Contractor Defendants were required to develop a Health and

Safety Plan that complied with OSHA requirements for hazardous waste site operations

in 29 C.F.R. § 1910.120 and with EPA regulations for response actions per 40 C.F.R.

§ 300.700(c)(5)(i). Their Health and Safety Plan did not comply with these requirements.

54. EPA and the Contractor Defendants were subject to various mandatory

laws, regulations, and policies that removed or circumscribed their discretion in carrying

out the work at the Gold King Mine site, including but not limited to the Federal Mine

Safety and Health Act of 1977 and Title 30, Code of Federal Regulations, Part 75. See 30

U.S.C. § 877(b); 30 C.F.R. §§ 75.372, 75.388(a)(2), 75.1200. Their conduct violated

these laws, regulations, and policies.

55. On August 5, 2015, the EPA On Site Team performed work at the Level 7 Adit.

56. EPA and the Contractor Defendants did not accurately measure the level, volume,

or pressure of the toxic wastewater behind the blockage before the EPA On Site Team performed

their work on August 5, 2015.

57. Members of the EPA On Site Team have given conflicting reports regarding their

work. Some believed their objective was to excavate the adit to create an opening. Others

believed the objective was to use a backhoe excavator to scratch the earth around the adit.

58. On information and belief, this conflict was caused by miscommunication among

EPA and the Contractor Defendants. The EPA On Site Team intentionally performed their

actions but did not clearly understand their work, or how to safely and properly accomplish the

work given the dangers presented by the site.

59. The intentional actions of the EPA and Contractor Defendants caused a


11 la-1369332

breach in the adit, resulting in the Blowout. See The HARRY READ ME File, EPA

releases Gold King Mine blowout footage: ‘Get outta here?!…What do we do now?’,

YOUTUBE (Sept. 10, 2015), https://www.youtube.com/watch?v=ZBlR05tDCbI. See also

The HARRY READ ME File, EPA on striking water at Gold King Mine: ‘We thought

we’d opened up a spring’, YOUTUBE (Sept. 15, 2015),

https://www.youtube.com/watch?v=hxWjAsVvL74. The actions, events, and facts

contained in these videos are true and accurate, and are incorporated by reference as if

fully set forth herein.1 These facts and the failures of EPA and the Contractor Defendants

to take reasonable and necessary precautions before, during, and after the Blowout were

wrongful, and did not constitute the performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency or an employee of the

Government. Each of the Contractor Defendants had an independent duty and the

authority to take the necessary actions and to perform their work in a manner to prevent

the Blowout.

60. The Blowout released approximately 3,000,000 gallons of hazardous, toxic

orange-brown wastewater into the Animas River.

61. Toxic wastes from the Blowout have been and are being transported through the

Animas and San Juan River system to Lake Powell in the State of Utah, among other locations.

Defendants knew or should have known that the release of contaminants could and would be

transported to the State of Utah to damage its environment, and intentionally committed the

actions that resulted in the release. Investigations are ongoing.

62. The Blowout has caused environmental, economic, and other damage to the State

of Utah, and will require the incurrence of recoverable costs from Defendants, including but not

limited to those for the immediate response, investigation, remediation, restoration and

1 Copies of these videos have been conventionally filed under separate cover.


12 la-1369332

compensation for damages, lost environmental values and use.

63. To date, EPA is not and has not engaged in a removal action in the State of Utah

for the contamination caused by the Blowout. EPA has not incurred costs to initiate a Remedial

Investigation and Feasibility Study in the State of Utah. EPA is not diligently proceeding with a

remedial action in State of Utah for the Blowout. EPA has not determined whether it will

commence such actions in the State of Utah, or when it will commence and diligently proceed

with such actions in the State of Utah.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

COST RECOVERY AND OTHER RELIEF UNDER CERCLA 42 U.S.C. § 9607(a) AGAINST EPA (AND ITS ADMINISTRATOR), ENVIRONMENTAL RESTORATION,

WESTON SOLUTIONS, HARRISON WESTERN, KINROSS, KINROSS U.S.A., SUNNYSIDE GOLD, AND GOLD KING CORP.

64. The State of Utah incorporates the allegations in all preceding paragraphs as if

fully set forth herein.

65. Defendants are “persons” under CERCLA. 42 U.S.C. § 9601(22).

66. The Owner Defendants are “owners” and “operators” of the Sunnyside Mine, or

were “owners” and “operators” at the time hazardous substances were disposed of at the

Sunnyside Mine. 42 U.S.C. §§ 9607(a)(1)-(2).

67. Gold King Corp. was an “owner” and “operator” of the Gold King Mine at

relevant times when hazardous substances were released or disposed of at that facility.

68. By managing, directing, and implementing reclamation activities at the Gold King

Mine site, EPA and the Contractor Defendants were “operators” of the Gold King Mine when the

Blowout occurred.

69. Defendants are “arrangers” under CERCLA because they, by contract, agreement

or otherwise, intentionally arranged for the disposal, treatment, and/or transport of hazardous


13 la-1369332

substances released from the Gold King Mine and other nearby mines. 42 U.S.C. § 9607(a)(3).

Defendants owned or possessed the hazardous substances that were released in the Blowout.

70. Leading up to and at the time of the Blowout, the Contractor Defendants accepted

hazardous substances from the Sunnyside Mine and the Gold King Mine, and undertook to

dispose, treat, and transport hazardous substances to disposal or treatment facilities, or sites

selected by the Contractor Defendants. Releases of hazardous substances from those facilities

and/or sites occurred. The Contractor Defendants were thus “transporters” under CERCLA. 42

U.S.C. § 9607(a)(4).

71. The Contractor Defendants are “response action contractors” under CERCLA. 42

U.S.C. § 9619(a). Under CERCLA § 9619(a)(2), a response action contractor shall be liable for

a release caused by its negligence, gross negligence, or intentional misconduct. The Contractor

Defendants’ negligence, gross negligence, and intentional misconduct caused or contributed to

the release of hazardous substances from the mines.

72. The Gold King Mine and Sunnyside Mine are “facilities” under CERCLA. 42

U.S.C. § 9601(9). Furthermore, the numerous downstream reaches of the San Juan River and

Lake Powell, where hazardous substances from the mines have been deposited, are separate

“facilities” under CERCLA.

73. “Releases” of “hazardous substances”—including but not limited to arsenic, lead,

mercury, cadmium, aluminum, and zinc—from these facilities have occurred and are still

occurring. 42 U.S.C. §§ 9601(22) and (14). These releases include the August 5, 2015 Blowout,

as well as past and present releases from the Sunnyside mine pool through the Gold King Mine,

the Sunnyside Mine, and surrounding areas owned or operated by Defendants. Defendants’

actions substantially caused and contributed to the contamination in the State of Utah, including

but not limited to the San Juan River and Lake Powell, and they are jointly and severally liable

for the resulting indivisible harms and contamination.


14 la-1369332

74. The State of Utah is a “State” authorized to recover costs to assess damages, and

damages and the cost of restoration to natural resources under CERCLA. 42 U.S.C. § 9607(a).

Section 9607(a) provides that the State of Utah may also recover interest on response costs

incurred. The State of Utah in no way caused, contributed to, or consented to the Blowout, and

is not affiliated with any other party that is potentially liable for the response costs.

75. The State of Utah has taken reasonable steps to investigate and respond to the

release from the Blowout.

76. Because of these releases and the substantial threat of future releases, the State of

Utah has incurred and continues to incur response costs that are both “necessary” and “not

inconsistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4) and (a)(4)(B). These

costs include but are not limited to costs associated with the response, investigation, remediation,

restoration, and compensation for lost environmental values and use; providing clean water

supplies to the people of the State of Utah; testing and assessing the quality of the soil and water

affected by the Blowout; responding and reacting to the crisis; and attorneys’ fees, in an amount

to be proven at trial.

SECOND CAUSE OF ACTION

DECLARATORY JUDGMENT UNDER CERCLA 42 U.S.C § 9613(G)(2) AGAINST EPA (AND ITS ADMINISTRATOR), ENVIRONMENTAL RESTORATION, WESTON SOLUTIONS, HARRISON WESTERN, KINROSS, KINROSS U.S.A., SUNNYSIDE

GOLD, AND GOLD KING CORP.



78. CERCLA specifies that in any action for recovery of costs under 42 U.S.C. §

9607 “the court shall enter a declaratory judgment on liability for response costs . . . that will be

binding on any subsequent action or actions to recover further response costs . . . .” 42 U.S.C. §

9613(g)(2).


15 la-1369332

79. The State of Utah will continue to incur response costs, including but not limited

to those required to address the contamination from the Blowout in the State of Utah, such as in

the San Juan River and Lake Powell.

80. The State of Utah is entitled to entry of a declaratory judgment that Defendants

are jointly and severally liable for future costs and damages, including but not limited to

response costs and natural resource damages assessment costs and damages based on the

contamination in the State of Utah, such as in the San Juan River and Lake Powell, to the extent

that those costs are not inconsistent with the National Contingency Plan.

THIRD CAUSE OF ACTION

NEGLIGENCE AND GROSS NEGLIGENCE AGAINST THE UNITED STATES, ENRVIRONMENTAL RESTORATION, WESTON SOLUTIONS, HARRISON

WESTERN, KINROSS, KINROSS U.S.A., SUNNYSIDE GOLD, AND GOLD KING CORP.



82. Defendants knew or should have known about the presence and potential for

spreading of contamination at Gold King Mine, and had a duty to design and plan their tasks,

including but not limited to those to oversee, manage, maintain, and regulate the Gold King Mine

and Sunnyside Mine with reasonable care. They also had a duty to conduct all investigations and

work activities at the mines with reasonable care. This includes, but is not limited to, following

reasonable engineering, mining, safety, and other applicable standards in the industry, as well as

EPA and OSHA regulations. They also had a duty to take reasonable precautions in case of an

accidental release, including but not limited to implementing secondary containment measures

and an emergency response plan. It was foreseeable that the failure to use reasonable care in

performing these activities would cause injuries and damages to states, local communities, and

individuals downstream of the mines, including the State of Utah.


16 la-1369332

83. Defendants knew or should have known that the conditions at the Gold King

Mine presented a high risk of significant harm to the State of Utah and other downstream

communities, but Defendants acted in disregard of that risk.

84. Defendants acted with negligence, gross negligence, carelessly, recklessly,

intentionally, and wantonly in managing and disposing of contaminated wastewater in the Gold

King Mine and other area mines, such that they directly and proximately caused contamination

of the San Juan River, Lake Powell, and the surrounding environs.

85. EPA and the Contractor Defendants additionally breached their duties and acted

with negligence and gross negligence by excavating and allowing the excavation prior to the

arrival of the subcontractor with the experience and expertise necessary to safely excavate the

Gold King Mine adit.

86. As a direct and proximate result of Defendants’ acts and omissions as alleged

herein, the State of Utah has incurred, is incurring, and will continue to incur damages, including

but not limited to investigation, treatment, remediation, and monitoring costs and expenses

related to the contamination of its land and water in an amount to be proven at trial.

87. Defendants acted together to create the conditions that harmed the State of Utah.

The harm caused by Defendants’ tortious conduct is indivisible and they are jointly and severally

liable.

88. For the reasons set forth and specifically alleged above, Defendants acted

maliciously, wantonly, recklessly, and with conscious disregard of the known risks of injury to

others, including the State of Utah. The State of Utah is entitled to an award of punitive damages

against the Contractor Defendants and Owner Defendants that is sufficient to punish them and

that fairly reflects the aggravating circumstances alleged herein.

///

///


17 la-1369332

FOURTH CAUSE OF ACTION

NUISANCE AGAINST THE UNITED STATES, ENVIRONMENTAL RESTORATION, WESTON SOLUTIONS, HARRISON WESTERN, KINROSS, KINROSS U.S.A.,

SUNNYSIDE GOLD, AND GOLD KING CORP.



90. The use and enjoyment of the San Juan River, Lake Powell, and other areas in the

State of Utah, including but not limited to the biota, lands, waters, and sediments therein, are

rights common to, and belonging to, all members of the public.

91. Defendants’ negligent, grossly negligent, reckless, and/or intentional conduct

caused the Blowout on August 5, 2015.

92. The contamination and other harms resulting from the Blowout have

unreasonably interfered with the State of Utah’s interests and the public’s use and enjoyment,

including but not limited to the San Juan River and Lake Powell.

93. Defendants’ negligent, grossly negligent, reckless, and/or intentional actions have

directly and proximately caused contamination that significantly interferes with the State of

Utah’s interests and the public health, the public safety, the public comfort, and the public

convenience.

94. Defendants’ conduct is proscribed by applicable state and federal statutes,

ordinances, and/or administrative regulations.

95. The resulting contamination in the State of Utah, including but not limited to that

of the San Juan River and Lake Powell and surrounding environs that resulted from releases of

hazardous substances caused by Defendants, constitutes a physical invasion of public and private

property.

96. The State of Utah has suffered special injuries, which the public as a whole does

not share. The State of Utah has and will continue to suffer lost economic activity, tax revenues,


18 la-1369332

and stigmatic damages arising from these releases. This unlawful interference by the Defendants

directly and proximately caused, and continues to cause, injury to the State and people of the

State of Utah’s property and other legal interests.

97. The past, present, and ongoing conduct of Defendants, and the contamination

caused by their conduct, constitute a public and private nuisance. These injuries are continuing

and have caused long-lasting, possibly permanent, harm to the State of Utah’s public and its

environment. This public and private nuisance will continue as long as the San Juan River, Lake

Powell, and other areas in the State of Utah areas are contaminated with the hazardous waste

released in the Blowout.

98. Defendants acted in concert, or successively. The harm caused by Defendants’

tortious conduct is indivisible and they are jointly and severally liable.

99. The State of Utah is entitled to recover damages from Defendants in an amount to

be proven at trial.

100. The State of Utah is entitled to entry of an order compelling Defendants, jointly

and severally, to abate the nuisance.

101. For the reasons set forth and specifically alleged above, the State of Utah is

entitled to an award of punitive damages against the Contractor Defendants and Owner

Defendants that is sufficient to punish them and that fairly reflects the aggravating circumstances

alleged herein.

FIFTH CAUSE OF ACTION

VIOLATION OF THE UTAH WATER QUALITY ACT AGAINST ENVIRONMENTAL RESTORATION, WESTON SOLUTIONS, HARRISON WESTERN, KINROSS,

KINROSS U.S.A., SUNNYSIDE GOLD, AND GOLD KING CORP.



103. The Owner Defendants and Contractor Defendants are all “persons”


19 la-1369332

within the meaning of the Utah Water Quality Act, UTAH CODE ANN. § 19-5-101 et seq.

104. By taking the actions described above, the Owner Defendants and

Contractor Defendants have discharged pollutants into waters of the State of Utah. UTAH

CODE ANN. § 19-5-107(1)(a).

105. The Owner Defendants and Contractor Defendants have caused pollution

that is harmful to wildlife, fish and/or aquatic life, and/or impairs domestic, agricultural,

industrial, recreational, and/or other beneficial uses of water. Id.

106. The Owner Defendants and Contractor Defendants have placed wastes

and/or caused wastes to be placed in a location where there was probable cause to believe

the wastes would cause pollution. Id.

107. Accordingly, the Owner Defendants and Contractor Defendants are liable

to the State of Utah for damages, a penalty of up to $10,000 per day of violation, a

temporary or permanent injunction to address the violation, and other relief as the Court

deems appropriate. UTAH CODE ANN. §§ 19-5-115(2), (7)(a); 19-1-303(1)(a)(i).

108. These violations of law and the resulting harms are continuing and

ongoing. Each day the pollutants are present or persist in the State of Utah’s soil,

sediment, and water constitutes a separate and independent violation.

SIXTH CAUSE OF ACTION

VIOLATION OF THE UTAH SOLID AND HAZARDOUS WASTE ACT AGAINST ENVIRONMENTAL RESTORATION, WESTON SOLUTIONS, HARRISON

WESTERN, KINROSS, KINROSS U.S.A., SUNNYSIDE GOLD, AND GOLD KING CORP.



110. The Owner Defendants and Contractor Defendants are all “persons”

within the meaning of the Utah Solid and Hazardous Waste Act, UTAH CODE ANN. § 19-


20 la-1369332

6-101 et seq.

111. The Blowout released hazardous substances into the waters and land of the

State of Utah, within the meaning of the Utah Solid and Hazardous Waste Act. UTAH

CODE ANN. § 19-6-102(10).

112. By taking the actions described above, the Owner Defendants and

Contractor Defendants are contributing or have contributed to the handling,

transportation, treatment, storage, or disposal of a solid or hazardous waste which

presents an imminent and substantial danger to the environment. Id.

113. Accordingly, the Owner Defendants and Contractor Defendants are liable

for a penalty of up to $13,000 per day of violation, a temporary or permanent injunction

to address the violation, and other relief as the Court deems appropriate. Id.; UTAH CODE

ANN. §§ 19-6-113(2); 19-1-303(1)(a)(i).

114. These violations of law and the resulting harms are continuous and

ongoing, and each day that the hazardous wastes are present or persist in the State of

Utah’s soil, sediment, or water constitutes an additional violation.

SEVENTH CAUSE OF ACTION

INJUNCTIVE RELIEF UNDER RCRA 42 U.S.C. § 6972(a)(1)(B) AGAINST EPA AND ITS ADMINISTRATOR

115. The State of Utah incorporates the allegations in all preceding paragraphs

as if fully set forth herein.

116. RCRA authorizes citizen suits against “any person . . . including the

United States and any other governmental instrumentality or agency . . . who has

contributed or who is contributing to the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous waste which may present an

imminent and substantial endangerment to health or the environment.” 42 U.S.C. §


21 la-1369332

6972(a)(1)(B). Under RCRA, a court may order any person referred to in paragraph

(1)(B) “to take such . . . action as may be necessary” to eliminate endangerment to health

or the environment. 42 U.S.C. § 6972(a).

117. RCRA defines “disposal” as “the discharge, deposit, injection, dumping,

spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or

water so that such solid waste or hazardous waste or any constituent thereof may enter

the environment or be emitted into the air or discharged into any waters, including

ground waters.” 42 U.S.C. § 6903(3).

118. The State of Utah is a “person” under RCRA, 42 U.S.C. § 6903(15), and is

entitled to commence a civil action under RCRA’s citizen suit provision.

119. EPA is a “person” under RCRA. 42 U.S.C. § 6903(15). EPA is also an

operator of the Gold King Mine facility, which treats, stores, and disposes of hazardous

waste. 42 U.S.C. § 6903(3), (33)-(34).

120. The Blowout discharged toxics, including but not limited to arsenic, lead,

mercury, cadmium, copper, and zinc into the San Juan River and Lake Powell. These

substances are “hazardous wastes” and/or “solid wastes” under RCRA. 42 U.S.C. §

6903(5)(B).

121. EPA acted as a “person,” and/or as an operator of the Gold King Mine

facility, in causing the Blowout. EPA thereby contributed and is contributing to the

storage, treatment, and disposal of hazardous and/or solid wastes, which present an

imminent and substantial endangerment to health and the environment in the State of

Utah, including but not limited to the San Juan River and Lake Powell.

122. By a letter dated February 26, 2016, the State of Utah notified EPA of its

intent to file suit under RCRA to restrain or abate the conditions that present or may

present an imminent and substantial endangerment to health or the environment in the


22 la-1369332

State of Utah. This letter followed the notice requirements found in 42 U.S.C. § 6972(b).

The imminent and substantial threats described in that letter are continuing or reasonably

likely to continue.

123. The State of Utah is entitled to entry of an injunction that may require,

among other things, a full investigation and remediation of the contamination in the State

of Utah caused by the Blowout, including but not limited to the San Juan River and Lake

Powell, and the full recovery of its attorney fees and costs.

EIGHTH CAUSE OF ACTION

AGAINST EPA AND ITS ADMINISTRATOR UNDER CWA 33 U.S.C. § 1365(h)

124. The State of Utah incorporates the allegations in all preceding paragraphs

as if fully set forth herein.

125. The CWA prohibits “the discharge of any pollutant by any person.” 33

U.S.C. § 1311(a). A state or federal agency is a “person” under the CWA. 40 C.F.R. §

122.2. Discharges from inactive mines are “pollutants” under the CWA. 40 C.F.R. §

122.26(b)(14)(iii).

126. A Governor of a State may commence a civil action against the EPA

Administrator when the Administrator allegedly failed “to enforce an effluent standard or

limitation under this chapter the violation of which is occurring in another State and is

causing an adverse effect on the public health or welfare in his State, or is causing a

violation of any water quality requirement in his State.” 33 U.S.C. § 1365(h).

127. An “effluent standard or limitation under this chapter” includes “an

unlawful act” under Section 301(a) of the CWA, such as “the discharge of any pollutant

by any person.” 33 U.S.C. §§ 1311(a), 1365(f)(1).

128. By causing the Blowout, EPA and its Administrator discharged pollutants

into the San Juan River and Lake Powell within the State of Utah and thereby failed to


23 la-1369332

enforce an “effluent standard or limitation.” These pollutants caused an adverse effect on

public health and welfare in the State of Utah, and further violated the State of Utah’s

water quality requirements, including but not limited to relevant provisions of the Utah

Solid and Hazardous Waste Act and the Utah Water Quality Act, as described above.

129. Accordingly, the State of Utah is authorized to compel the EPA

Administrator to abate the pollutants released in the Blowout that have contaminated soil,

sediment, and water within the State of Utah.

JURY TRIAL DEMAND

130. The State of Utah demands a jury trial for all appropriate issues.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff the State of Utah prays for an order and judgment:

131. Declaring that all Defendants are jointly and severally liable under CERCLA, 42

U.S.C. § 9607(a), for all costs, including prejudgment interest incurred by the State of Utah in

responding to releases or threatened releases of hazardous substances from the Gold King, the

Sunnyside Mine, or the American Tunnel to the date of judgment;

132. Declaring that all Defendants are jointly and severally liable under CERCLA, 42

U.S.C. § 9613(g)(2), for all response costs that will be incurred by the State of Utah in

responding to releases or threatened releases of hazardous substances from the Gold King Mine,

the Sunnyside Mine, or the American Tunnel;

133. Declaring that all Defendants were negligent, grossly negligent, or both, and

awarding the State of Utah compensatory, consequential, and punitive damages caused by

Defendants’ conduct, including but not limited to investigation, clean-up, and remedial costs,

economic loss, loss of use, diminution in value, and stigma damages;

134. Declaring that EPA is in violation of RCRA’s imminent and substantial


24 la-1369332

endangerment provision, 42 U.S.C. § 6972(a)(1)(B), until it remediates the contamination

resulting from the Blowout;

135. Compelling Defendants to investigate, remediate and abate the pollution caused

by the Blowout that contaminated the environment in the State of Utah;

136. Ordering disgorgement of all profits made, or costs avoided, by Defendants

because of their tortious and wrongful conduct;

137. Ordering Defendants by injunction or other appropriate direction to abate the

nuisance, including but not limited to the soil, sediments, and groundwater in the State of Utah,

including but not limited to the San Juan River and Lake Powell;

138. Declaring Defendants are jointly and severally liable for all costs incurred and

costs that may be incurred by the State of Utah to abate the nuisance in the State of Utah,

including but not limited to the San Juan River and Lake Powell;

139. Assessing civil penalties against the Owner Defendants and Contractor

Defendants for each day that each Defendant violated the Utah Water Quality Act and/or the

Utah Solid and Hazardous Waste Act.

140. Awarding the State of Utah its pre-judgment and post-judgment interest, to the

extent not prohibited by law, and attorneys’ fees, costs, and expenses, and such other and further

relief as the Court may deem just and equitable.

Dated: January 4, 2018

SEAN D. REYES UTAH ATTORNEY GENERAL

By: /s/ Spencer E. Austin SPENCER E. AUSTIN


25 la-1369332

Dated: January 4, 2018

MORRISON & FOERSTER LLP

By: /s/ Peter Hsiao PETER HSIAO

Attorneys for Plaintiff THE STATE OF UTAH


UTAH ATTORNEY GENERAL - United States … ATTORNEY GENERAL Spencer E. Austin, Utah Bar # 150 Chief...

Documents

Transcript of UTAH ATTORNEY GENERAL - United States … ATTORNEY GENERAL Spencer E. Austin, Utah Bar # 150 Chief...